Saturday, July 31, 2010

In my column of three weeks ago I concluded with a paragraph which I thought was a motherhood statement.I wrote then: “But one indispensable requirement of land reform is that the owner must be given just compensation.A recent decision of the Supreme Court emphasized that the concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also payment within a reasonable time from its taking.”I did not realize then that the paragraph would provoke a hornet’s nest.

Shortly after that my office received calls asking for an appointment to discuss the article.I finally received a delegation last Thursday.The conversation was all about failed just compensation.And since land reform is not an area of justice which I have followed closely, the session was an education for me.Let me just try to summarize some of what I was made to hear.

First of all, I was reminded that the Court teaching on promptness of payment as part of just compensation was not anything new.In all logic, it really should not be.The reasoning behind this was recently repeated by the Court:“It has been repeatedly stressed by this Court that the true measure is not the taker’s gain but the owner’s loss. The word ‘just’ is used to modify the meaning of the word ‘compensation’ to convey the idea that the equivalent to be given for the property to be taken shall be real, substantial, full, and ample.

The concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also payment within a reasonable time from its taking. Without prompt payment, compensation cannot be considered ‘just’ inasmuch as the property owner is made to suffer the consequences of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss. Put differently, while prompt payment of just compensation requires the immediate deposit and release to the landowner of the provisional compensation as determined by the DAR, it does not end there. Verily, it also encompasses the payment in full of the just compensation to the landholders as finally determined by the courts. Thus, it cannot be said that there is already prompt payment of just compensation when there is only a partial payment thereof, as in this case.”

What stories did I hear?One is probably a generic story true of many families.

“It has been 38 years since the program was implemented, and many original landowners are now DEAD, their children have likewise died.Unfortunately, many of the original landowners died without receiving the just compensation for their land, which all Philippine Constitutions promised them.

“Worse, before heirs can claim the promised compensation, they must pay all the estate taxes (plus penalties) because the original landowner, their children and grandchildren have died.Today, many third or forth generation landowners are still locked in litigation with DAR and the Land Bank over the issue of just compensation.”

Another tells a more personal story, of uncollected compensation, of a history of borrowing in order to maintain life, of home and family heirlooms disposed of to meet expenses, of a comfortable home sold, of struggles with DAR and the Land Bank ending with a small amount enough to be able to build a simple home out of the city while struggling with diabetes.It is a sad story.

I suppose that if these were to be within the priorities of the proposed Truth Commission other stories would be unearthed not just about the Arroyo years but even going back farther.But then I still have to see what the Truth Commission is all about.

All these bring me back to the Hacienda Luisita case about which I tentatively wrote three weeks ago.I anticipate that it will end as a victory for the farmer claimants.They will get the land they want.Then Hacienda Luisita and the Noynoy Aquino administration will be confronted with the problems of landowners seeking compensation for the lands they have lost.This may not be a bad thing after all.The Supreme Court has repeatedly said that social justice as a right of those who have less in life is not an instrument against those who have more.

• • • • •

This really has to nothing to do with the Hacienda Luisita case or with land reform in general.It is more of about the qualification of Mikey Arroyo.Already a case has been filed for his disqualification with the Supreme Court.But recently a case was also filed, or will be filed, with the House Electoral Tribunal.Who should the decide the case?

I have always taught my students that the jurisdiction of the Electoral Tribunal is over “contests” and that there is a contest when a losing candidate challenges the proclamation of a winning candidate and asks that he or she be declared the winner instead. No losing candidate is challenging Mikey Arroyo.I anticipate therefore that the Electoral Tribunal will throw out the case file against Arroyo.

Incidentally I am also watching how the Comelec will handle 1-Utak’s move to erase Angelo Reyes from the list of nominees.The Party-list Law says that the list submitted to the Comelec can be altered only when a nominee dies or when a nominee withdraws from the list in writing.I think Angelo Reyes is very much alive and I do not see him withdrawing his nomination in writing!

In my column of three weeks ago I concluded with a paragraph which I thought was a motherhood statement.I wrote then: “But one indispensable requirement of land reform is that the owner must be given just compensation.A recent decision of the Supreme Court emphasized that the concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also payment within a reasonable time from its taking.”I did not realize then that the paragraph would provoke a hornet’s nest.

Shortly after that my office received calls asking for an appointment to discuss the article.I finally received a delegation last Thursday.The conversation was all about failed just compensation.And since land reform is not an area of justice which I have followed closely, the session was an education for me.Let me just try to summarize some of what I was made to hear.

First of all, I was reminded that the Court teaching on promptness of payment as part of just compensation was not anything new.In all logic, it really should not be.The reasoning behind this was recently repeated by the Court:“It has been repeatedly stressed by this Court that the true measure is not the taker’s gain but the owner’s loss. The word ‘just’ is used to modify the meaning of the word ‘compensation’ to convey the idea that the equivalent to be given for the property to be taken shall be real, substantial, full, and ample.

The concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also payment within a reasonable time from its taking. Without prompt payment, compensation cannot be considered ‘just’ inasmuch as the property owner is made to suffer the consequences of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss. Put differently, while prompt payment of just compensation requires the immediate deposit and release to the landowner of the provisional compensation as determined by the DAR, it does not end there. Verily, it also encompasses the payment in full of the just compensation to the landholders as finally determined by the courts. Thus, it cannot be said that there is already prompt payment of just compensation when there is only a partial payment thereof, as in this case.”

What stories did I hear?One is probably a generic story true of many families.

“It has been 38 years since the program was implemented, and many original landowners are now DEAD, their children have likewise died.Unfortunately, many of the original landowners died without receiving the just compensation for their land, which all Philippine Constitutions promised them.

“Worse, before heirs can claim the promised compensation, they must pay all the estate taxes (plus penalties) because the original landowner, their children and grandchildren have died.Today, many third or forth generation landowners are still locked in litigation with DAR and the Land Bank over the issue of just compensation.”

Another tells a more personal story, of uncollected compensation, of a history of borrowing in order to maintain life, of home and family heirlooms disposed of to meet expenses, of a comfortable home sold, of struggles with DAR and the Land Bank ending with a small amount enough to be able to build a simple home out of the city while struggling with diabetes.It is a sad story.

I suppose that if these were to be within the priorities of the proposed Truth Commission other stories would be unearthed not just about the Arroyo years but even going back farther.But then I still have to see what the Truth Commission is all about.

All these bring me back to the Hacienda Luisita case about which I tentatively wrote three weeks ago.I anticipate that it will end as a victory for the farmer claimants.They will get the land they want.Then Hacienda Luisita and the Noynoy Aquino administration will be confronted with the problems of landowners seeking compensation for the lands they have lost.This may not be a bad thing after all.The Supreme Court has repeatedly said that social justice as a right of those who have less in life is not an instrument against those who have more.

• • • • •

This really has to nothing to do with the Hacienda Luisita case or with land reform in general.It is more of about the qualification of Mikey Arroyo.Already a case has been filed for his disqualification with the Supreme Court.But recently a case was also filed, or will be filed, with the House Electoral Tribunal.Who should the decide the case?

I have always taught my students that the jurisdiction of the Electoral Tribunal is over “contests” and that there is a contest when a losing candidate challenges the proclamation of a winning candidate and asks that he or she be declared the winner instead. No losing candidate is challenging Mikey Arroyo.I anticipate therefore that the Electoral Tribunal will throw out the case file against Arroyo.

Incidentally I am also watching how the Comelec will handle 1-Utak’s move to erase Angelo Reyes from the list of nominees.The Party-list Law says that the list submitted to the Comelec can be altered only when a nominee dies or when a nominee withdraws from the list in writing.I think Angelo Reyes is very much alive and I do not see him withdrawing his nomination in writing!

Saturday, July 24, 2010

The divided decision of the Comelec on whether Mikey Arroyo qualifies as a party-list representative is indication that some Commissioners have chosen to ignore the law on the subject.The Supreme Court will have to send them back to school.

The Supreme Court already dealt with this in the 2001 case of Ang Bagong Bayani.Although that decision was primarily about the qualities of the party-list organization and not directly about party-list representatives, the Court nevertheless manifested its thinking about the representatives themselves.

We must begin with the basic constitutional text on party-list.It says: “For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.”

Note that the text says that the party-list representatives shall be chosen “by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.” But the Court also noted that the provision was not self-executory considering that the law was interspersed with phrases like ‘in accordance with law’ or ‘as may be provided by law’ and that therefore “it was thus up to Congress to sculpt in granite the lofty objective of the Constitution.”

How did Congress sculpt the image of the party-list representative?Prefatorily R.A. 7941, the Party-List Law, said that the system should “enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives.”From this one may easily deduce that Filipino citizens who are and have been prominent members of well established political parties would be excluded.

For this reason the 2001 decision already concluded that party-list representativesmust be Filipino citizens “1. who belong to marginalized and underrepresented sectors, organizations and parties; and2. who lack well-defined constituencies; but3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.”The Court emphasized the key words “marginalized and underrepresented,” and “lack [of] well-defined constituencies.”

When Congress finally enumerated the qualifications of a party-list representative it said in Section 9 of R.A. 7941: “No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.”

But what does being a bona fide member of a party-list organization mean? The meaning cannot be a departure from the constitutional provision which says that he must be elected “from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.” Or, as the Supreme Court said in 2001, he must be chosen from among those “1. who belong to marginalized and underrepresented sectors, organizations and parties; and2. who lack well-defined constituencies; but3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.”

Last year the Supreme Court reiterated this in Banat v. Comelec when it said that “it is not necessary that the party-list organization’s nominee ‘wallow in poverty, destitution and infirmity’ as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors, that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen.”

It is sometimes argued that it would be illogical to exclude members of elite groups because those who belong to the marginalized sectors might not have the capacity to “contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.”Such argument adds insult to injury.

Finally, to quote the 2001 Court decision once more: “In the end, the role of the Comelec is to see to it that only those Filipinos who are ‘marginalized and underrepresented’ become members of Congress under the party-list system, Filipino-style.”How could some Comelec Commissionersmiss this if not deliberately?And what should an enlightened Comelec do with a party-list organization which by its choice of nomineesseeksto prostitute the system?

Saturday, July 17, 2010

It is quite obvious that parents themselves are divided about sex education for their minor children in school.I think that there should be a search for a compromise somewhere.Since what is involved is a conflict of rights and obligations, a look at the principles involved should be helpful.

Educational institutions themselves, whether private or public, have the constitutional duty to “strengthen ethical and spiritual values, develop moral character and personal discipline.”The manner of carrying out this duty, however, is not specified.There is room for the creative formulation by the state of plans and programs that can be acceptable to all.

However, the duty and responsibility to “strengthen ethical and spiritual values, develop moral character and personal discipline” belongs primarily to parents.As the fundamental law puts it, “The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.”What is clear from this is that the primary right and duty belongs to parents and the role of government is subsidiary.Hence, some rational way of cooperation must be found whereby government can satisfy the views of disagreeing parents.

Indeed, modern society recognizes the indispensable role which the modern state has to play in the field of education.Parents need the help of the state in the proper formation of children for civic and social life.This role of the state is performed either through state established schools or through state regulation of private institutions of learning.This subject is now treated by the Constitution more fully than it ever was in earlier constitutions.Moreover, the role of parents has been strengthened but the role of government is specified as in support of the natural right and duty of parents.The law has added the adjective "primary" to modify the right of parents in order to emphasize that the right of parents is superior to that of the state.

The root of all this, of course, is the basic philosophy of liberty guaranteed by the due process clause.There is ample jurisprudence on this as applied to education.. For instance, a statute prohibiting the teaching of German to students up to a certain age was declared invalid.The US Supreme Court said:“For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide:‘That the wives of our guardians are to be common, and their children are to be common, and no parents is to know his own child nor any child his parent . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or the better when they chance to be deformed will be put away in some mysterious, unknown place, as they should be.’In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and entrusted their subsequent education and training to official guardians.Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution.”

Another decision invalidated a law requiring children up to a certain age to go to public schools only.The Court said:“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

This is not to say, however, that the only things parents have are rights.They also have obligations. And the state, as parens patriae, has the duty to insure that parents perform their civic duty to preparetheir children for life in society and to protect their health. Thus, in a case where a law required parents to send their children to school up to a certain age, the parents were excused when it was seen that the families themselves were adequately preparing their children for civic life.

This brings me back to what I said about the need to look for a formula that can satisfy the rights of parents and the duty of the state in the rearing of the youth for civic life.I believe that a formula, with necessary modifications, may be found in what is said about religious instruction in public schools.The Constitution says:“At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.”For many parents sexual morality is all part of religious upbringing.Sex is such an important subject that something similar to what is done for religious instruction might be worked out for sex education.

It is quite obvious that parents themselves are divided about sex education for their minor children in school.I think that there should be a search for a compromise somewhere.Since what is involved is a conflict of rights and obligations, a look at the principles involved should be helpful.

Educational institutions themselves, whether private or public, have the constitutional duty to “strengthen ethical and spiritual values, develop moral character and personal discipline.”The manner of carrying out this duty, however, is not specified.There is room for the creative formulation by the state of plans and programs that can be acceptable to all.

However, the duty and responsibility to “strengthen ethical and spiritual values, develop moral character and personal discipline” belongs primarily to parents.As the fundamental law puts it, “The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.”What is clear from this is that the primary right and duty belongs to parents and the role of government is subsidiary.Hence, some rational way of cooperation must be found whereby government can satisfy the views of disagreeing parents.

Indeed, modern society recognizes the indispensable role which the modern state has to play in the field of education.Parents need the help of the state in the proper formation of children for civic and social life.This role of the state is performed either through state established schools or through state regulation of private institutions of learning.This subject is now treated by the Constitution more fully than it ever was in earlier constitutions.Moreover, the role of parents has been strengthened but the role of government is specified as in support of the natural right and duty of parents.The law has added the adjective "primary" to modify the right of parents in order to emphasize that the right of parents is superior to that of the state.

The root of all this, of course, is the basic philosophy of liberty guaranteed by the due process clause.There is ample jurisprudence on this as applied to education.. For instance, a statute prohibiting the teaching of German to students up to a certain age was declared invalid.The US Supreme Court said:“For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide:‘That the wives of our guardians are to be common, and their children are to be common, and no parents is to know his own child nor any child his parent . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or the better when they chance to be deformed will be put away in some mysterious, unknown place, as they should be.’In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and entrusted their subsequent education and training to official guardians.Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution.”

Another decision invalidated a law requiring children up to a certain age to go to public schools only.The Court said:“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

This is not to say, however, that the only things parents have are rights.They also have obligations. And the state, as parens patriae, has the duty to insure that parents perform their civic duty to preparetheir children for life in society and to protect their health. Thus, in a case where a law required parents to send their children to school up to a certain age, the parents were excused when it was seen that the families themselves were adequately preparing their children for civic life.

This brings me back to what I said about the need to look for a formula that can satisfy the rights of parents and the duty of the state in the rearing of the youth for civic life.I believe that a formula, with necessary modifications, may be found in what is said about religious instruction in public schools.The Constitution says:“At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.”For many parents sexual morality is all part of religious upbringing.Sex is such an important subject that something similar to what is done for religious instruction might be worked out for sex education.

Saturday, July 10, 2010

With the ascent of President Benigno Aquino III to the presidency, the future of Hacienda Luisita has become a focus of attention. I know that the disposition of Luisita is presently under litigation, but since I do not know the facts of the case, my comment will be not on the Luisita case but only on the parameters within which agricultural land distribution controversies are resolved.

The 1987 Constitution contains a more expanded treatment of the subject of land reform than was contained in past Constitutions.The various aspects of land reform are discussed in separate provisions covering agricultural land, urban land, and other natural resources (that is, other lands of the public domain).They are placed under the general sweep of regulations governing "acquisition, ownership, use, and disposition."

The agrarian reform law promulgated by President Marcos covered only rice and corn land. The 1987 Constitution covers “all agricultural lands,” but subject to priorities and retention limits which Congress may prescribe.As currently understood, agricultural land covered by land reform is limited to arable lands suitable for raising agricultural crops.This, of course, includes sugar lands.But it does not include lands devoted to raising livestock, poultry or swine.Moreover, it does not matter who the owner is.Hence, even church agricultural lands are covered.

The mandate for agrarian reform is founded on "the right of farmers and regular farm workers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a just share of the fruits thereof."The Constitutional Commission discussions of the subject, however, made it clear that the right that is recognized is not an inalienable basic right but rather one that flows from the changing exigencies of the common good in the concrete circumstances of the nation.As one Commissioner put it, "the polar star -- when we expound the principle of land reform --is that the farmer has a right to the land he tills, but this is not an immutable right.In other words, his claim of ownership does not automatically pertain or correspond to the same land that he is actually and physically tilling.It would yield to the limitations and adjustments.”

It will be noticed that the Constitution makes a distinction between what it calls “farmers who are regular farm workers”and “other farm workers.”“Farmers who are regular farm workers” are those who at the time of the enactment of the Constitution had a tenancy relationship with the landowners.They are given the right to own the land they till or its equivalent.The purpose of granting such farmers the right to own the land they till is to abolish tenancy relationship.This reflects the thinking that tenancy relations has been a source of many inequities.

As to “other farm workers,” e.g., seasonal workers, what is assured them is not the right to acquire ownership but a just share in the proceeds from the land.

To benefit from the ownership provision, however, regular farm workers must be “landless.”But what is meant is not absolute landlessness.It also refers to tillers who own land that is less than what the law would allow any landowner to keep.

Transfer of ownership to the tiller, however, does not come automatically with the enactment of the Constitution.It needs implementing legislation. This is what the Agrarian Reform Law does.The Hacienda Luisita case will be decided under the Agrarian Reform Law.

The law sets priorities and retention limits.Priorities refer to various factors which can affect the pace and scope of implementation and which can make implementation more manageable.This factor will certainly affect any decision on Luisita.As to retention limits, that is, how much and which area an owner may retain, the general guideline is that these should be "reasonable."

The important constitutional consideration in all this is that Congress is given discretion to set priorities and retention limits.Various factors will have to be evaluated in arriving at the proper limitations, but such factors would to a large extent be matters of wisdom and not of constitutionality.The over-riding guideline for Congress is the flexible concept of "reasonableness."

The law also allows conversion of agricultural lands into non-agricultural uses, such as commerce or residences.The implementation of the law on conversion comes under the Secretary of Agrarian Reform. Recently, to address the unabated conversion of prime agricultural lands for real estate development, the Secretary temporarily suspended the processing and approval of all land use conversion applications.A recent Supreme Court decision dismissed the challenge to the action taken by the Secretary.The Court noted that the suspension of conversions had been issued “upon the instruction of the President in order to address the unabated conversion of prime agricultural lands for real estate development because of the worsening rice shortage in the country at that time.” This is one illustration of the flexibility of the law on agrarian reform.

But one indispensable requirement of land reform is that the owner must be given just compensation.A recent decision of the Supreme Court emphasized that the concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also payment within a reasonable time from its taking.

With the ascent of President Benigno Aquino III to the presidency, the future of Hacienda Luisita has become a focus of attention. I know that the disposition of Luisita is presently under litigation, but since I do not know the facts of the case, my comment will be not on the Luisita case but only on the parameters within which agricultural land distribution controversies are resolved.

The 1987 Constitution contains a more expanded treatment of the subject of land reform than was contained in past Constitutions.The various aspects of land reform are discussed in separate provisions covering agricultural land, urban land, and other natural resources (that is, other lands of the public domain).They are placed under the general sweep of regulations governing "acquisition, ownership, use, and disposition."

The agrarian reform law promulgated by President Marcos covered only rice and corn land. The 1987 Constitution covers “all agricultural lands,” but subject to priorities and retention limits which Congress may prescribe.As currently understood, agricultural land covered by land reform is limited to arable lands suitable for raising agricultural crops.This, of course, includes sugar lands.But it does not include lands devoted to raising livestock, poultry or swine.Moreover, it does not matter who the owner is.Hence, even church agricultural lands are covered.

The mandate for agrarian reform is founded on "the right of farmers and regular farm workers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a just share of the fruits thereof."The Constitutional Commission discussions of the subject, however, made it clear that the right that is recognized is not an inalienable basic right but rather one that flows from the changing exigencies of the common good in the concrete circumstances of the nation.As one Commissioner put it, "the polar star -- when we expound the principle of land reform --is that the farmer has a right to the land he tills, but this is not an immutable right.In other words, his claim of ownership does not automatically pertain or correspond to the same land that he is actually and physically tilling.It would yield to the limitations and adjustments.”

It will be noticed that the Constitution makes a distinction between what it calls “farmers who are regular farm workers”and “other farm workers.”“Farmers who are regular farm workers” are those who at the time of the enactment of the Constitution had a tenancy relationship with the landowners.They are given the right to own the land they till or its equivalent.The purpose of granting such farmers the right to own the land they till is to abolish tenancy relationship.This reflects the thinking that tenancy relations has been a source of many inequities.

As to “other farm workers,” e.g., seasonal workers, what is assured them is not the right to acquire ownership but a just share in the proceeds from the land.

To benefit from the ownership provision, however, regular farm workers must be “landless.”But what is meant is not absolute landlessness.It also refers to tillers who own land that is less than what the law would allow any landowner to keep.

Transfer of ownership to the tiller, however, does not come automatically with the enactment of the Constitution.It needs implementing legislation. This is what the Agrarian Reform Law does.The Hacienda Luisita case will be decided under the Agrarian Reform Law.

The law sets priorities and retention limits.Priorities refer to various factors which can affect the pace and scope of implementation and which can make implementation more manageable.This factor will certainly affect any decision on Luisita.As to retention limits, that is, how much and which area an owner may retain, the general guideline is that these should be "reasonable."

The important constitutional consideration in all this is that Congress is given discretion to set priorities and retention limits.Various factors will have to be evaluated in arriving at the proper limitations, but such factors would to a large extent be matters of wisdom and not of constitutionality.The over-riding guideline for Congress is the flexible concept of "reasonableness."

The law also allows conversion of agricultural lands into non-agricultural uses, such as commerce or residences.The implementation of the law on conversion comes under the Secretary of Agrarian Reform. Recently, to address the unabated conversion of prime agricultural lands for real estate development, the Secretary temporarily suspended the processing and approval of all land use conversion applications.A recent Supreme Court decision dismissed the challenge to the action taken by the Secretary.The Court noted that the suspension of conversions had been issued “upon the instruction of the President in order to address the unabated conversion of prime agricultural lands for real estate development because of the worsening rice shortage in the country at that time.” This is one illustration of the flexibility of the law on agrarian reform.

But one indispensable requirement of land reform is that the owner must be given just compensation.A recent decision of the Supreme Court emphasized that the concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also payment within a reasonable time from its taking.

Saturday, July 3, 2010

Before I say anything about the “Red Mass scheduled for next Wednesday,” let me jus take my hat off to Chief Justice Corona and former President Joseph Estrada.

In my last column I wrote that the invitationto Chief Justice Corona to attend the presidential inauguration placed the Chief Justice in a very awkward position.After all, President Aquino had snubbed him and had refused to take his oath before him.But Corona came nevertheless and patiently sat through the entire ceremony (even if his presence was not acknowledged in the President’sinaugural address). President Estrada for his part had fought hard to deny Aquino the presidency.He lost; but he too sat through the entire ceremony.

The presence of the two public figures was a humble but eloquent silent appeal for national unity.

* * * * *

Next Wednesday, at the Manila Cathedral, at 9 in the morning, His Eminence Gaudencio Cardinal Rosales, together with at least fifteen other bishops, will preside at a solemn celebration of a “Red Mass” for judges and justices, members of the Bar, law school professors and government officials.The Cardinal has sent out his personal invitation to members of the judiciary, of the executive department, of Congress and to other members of the legal profession andto officials and professors of colleges and universities.

But what is “The Red Mass”?It is the Mass of the Holy Spirit.Following a tradition that dates back to the high Middle Ages, the Mass is called Red from the red liturgical vestments traditionally worn by the celebrants to symbolize the tongues of fire that descended on the Apostles at Pentecost.Historical records indicate that the tradition started principally in England and France.

In England the tradition is said to have commenced during the reign of Edward I, about the year 1310.In essence, the Mass was meant to call upon the Holy Spirit to grant light and inspiration to lawyers in pleading and to judges in adjudicating during the coming term of court.It became the custom for the entire Bench and Bar to attend the Red Mass at the opening of each term of court.The judges, who were all doctors of the law, wore the impressive red robes belonging to that office and attended the Red Mass as a body

The Messe Rouge in France is said to have started ahead of Englandin 1245. However, in 1906, following the modern tendencies of the French people, Parliament considered the ceremony to be offensive to their conception of liberty of conscience.Thus a resolution was passed prohibiting the celebration of the Messe Rouge. During the first World War a temporary suspension of the prohibition was obtained by the Paris Bar as a gesture of respect for the lawyers who had died in the battle for France and humanity.But the prohibition was revived later and the Messe Rouge in France, it seems,has passed into history.

Today the best known Red Mass is the one celebrated annually at the Cathedral of St. Matthew Apostle in Washington, D.C. on the Sunday before the first Monday of the October term of the U.S. Supreme Court.It is attended by Supreme Court justices, members of Congress, the diplomatic corps, the Cabinet, other government officials and sometimes the by President of the United States.“The Red Mass” was dramatized as episode 69 in the television series The West Wing.

An annual Red Mass is also celebrated today in cities in various countries, among them Canada, United States, Australia, Ireland and Scotland.

Although the Red Mass is an old custom which was started for jurists of a community once a year to gather before the Altar of God to ask for the light and the strength which only God can give them to fulfill their high public responsibility, it is now offered also for the entire members of officialdom.

The Red Mass has recently led to annual Masses for other occupational groups.For instance, in the United States "Blue" Masses are celebrated for police officers and others engaged in public safety, as well as "White" or "Rose" Masses for doctors, nurses, and other health-care professionals.

The Red Mass, or Mass of the Holy Spirit, is a peculiarly Catholic celebration.But it is not just for the benefit of Catholics.It is a way of expressing what is found in the Preamble of our Constitution where the sovereign Filipino people implore “the aid of Almighty God, in order to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.”More contemporaneously for our nation, it expresses the desire that the ambitious goals proclaimed by President Noynoy Aquino in his inaugural speech last week will become a reality for the Filipino people.

Finally, it is the hope of the Cardinal of the Archbishop of Manila that the Red Mass will become an annual practice in Metro Manila and in other parts of the country.

Before I say anything about the “Red Mass scheduled for next Wednesday,” let me jus take my hat off to Chief Justice Corona and former President Joseph Estrada.

In my last column I wrote that the invitationto Chief Justice Corona to attend the presidential inauguration placed the Chief Justice in a very awkward position.After all, President Aquino had snubbed him and had refused to take his oath before him.But Corona came nevertheless and patiently sat through the entire ceremony (even if his presence was not acknowledged in the President’sinaugural address). President Estrada for his part had fought hard to deny Aquino the presidency.He lost; but he too sat through the entire ceremony.

The presence of the two public figures was a humble but eloquent silent appeal for national unity.

* * * * *

Next Wednesday, at the Manila Cathedral, at 9 in the morning, His Eminence Gaudencio Cardinal Rosales, together with at least fifteen other bishops, will preside at a solemn celebration of a “Red Mass” for judges and justices, members of the Bar, law school professors and government officials.The Cardinal has sent out his personal invitation to members of the judiciary, of the executive department, of Congress and to other members of the legal profession andto officials and professors of colleges and universities.

But what is “The Red Mass”?It is the Mass of the Holy Spirit.Following a tradition that dates back to the high Middle Ages, the Mass is called Red from the red liturgical vestments traditionally worn by the celebrants to symbolize the tongues of fire that descended on the Apostles at Pentecost.Historical records indicate that the tradition started principally in England and France.

In England the tradition is said to have commenced during the reign of Edward I, about the year 1310.In essence, the Mass was meant to call upon the Holy Spirit to grant light and inspiration to lawyers in pleading and to judges in adjudicating during the coming term of court.It became the custom for the entire Bench and Bar to attend the Red Mass at the opening of each term of court.The judges, who were all doctors of the law, wore the impressive red robes belonging to that office and attended the Red Mass as a body

The Messe Rouge in France is said to have started ahead of Englandin 1245. However, in 1906, following the modern tendencies of the French people, Parliament considered the ceremony to be offensive to their conception of liberty of conscience.Thus a resolution was passed prohibiting the celebration of the Messe Rouge. During the first World War a temporary suspension of the prohibition was obtained by the Paris Bar as a gesture of respect for the lawyers who had died in the battle for France and humanity.But the prohibition was revived later and the Messe Rouge in France, it seems,has passed into history.

Today the best known Red Mass is the one celebrated annually at the Cathedral of St. Matthew Apostle in Washington, D.C. on the Sunday before the first Monday of the October term of the U.S. Supreme Court.It is attended by Supreme Court justices, members of Congress, the diplomatic corps, the Cabinet, other government officials and sometimes the by President of the United States.“The Red Mass” was dramatized as episode 69 in the television series The West Wing.

An annual Red Mass is also celebrated today in cities in various countries, among them Canada, United States, Australia, Ireland and Scotland.

Although the Red Mass is an old custom which was started for jurists of a community once a year to gather before the Altar of God to ask for the light and the strength which only God can give them to fulfill their high public responsibility, it is now offered also for the entire members of officialdom.

The Red Mass has recently led to annual Masses for other occupational groups.For instance, in the United States "Blue" Masses are celebrated for police officers and others engaged in public safety, as well as "White" or "Rose" Masses for doctors, nurses, and other health-care professionals.

The Red Mass, or Mass of the Holy Spirit, is a peculiarly Catholic celebration.But it is not just for the benefit of Catholics.It is a way of expressing what is found in the Preamble of our Constitution where the sovereign Filipino people implore “the aid of Almighty God, in order to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.”More contemporaneously for our nation, it expresses the desire that the ambitious goals proclaimed by President Noynoy Aquino in his inaugural speech last week will become a reality for the Filipino people.

Finally, it is the hope of the Cardinal of the Archbishop of Manila that the Red Mass will become an annual practice in Metro Manila and in other parts of the country.